R v Jones [2014] ACTSC 119

Legal Aid ACT (Defence)

1. Mr Stephen Michael Jones, on 4 March this year you were convicted by a jury after trial of one count that on 12 February 2013 you committed an act of indecency in the presence of BB without her consent, being reckless as to whether she was consenting (s 60(1) Crimes Act 1900 (ACT)).
2. I am satisfied, based upon the verdict of the jury and the evidence that was called during the course of the trial, that on the morning of 12 February 2013 you were on Elouera Street in Braddon. You sat on a bench across the street from a block of apartments. The victim in this matter, BB, was a cleaner who was working cleaning the area around the apartments. When you sat on the bench, you were in possession of a bottle of beer which you took out of a black backpack that you had been carrying at the time. You were consuming the beer and whilst you did that, you removed your penis from the leg opening of your shorts and exposed it to the complainant and then commenced masturbating. You also engaged in activity such as gesturing to BB and pointing to your mouth clearly in such a way as to suggest that she participate in sexual activity with you.
3. As the Crown has correctly observed, this behaviour occurred over a period of time and it occurred in a public place. There were other members of the public who were in the vicinity, albeit that they did not observe what took place. Only BB observed what you were doing. Certainly, it could be expected that other members of the public may well have been in the area.
4. You pleaded not guilty to the offence, as you were entitled to do. However, the fact that you did not enter a plea of guilty to the charge disentitles you to the leniency that you would have been entitled to had you admitted the offence.
5. I note that you have a significant criminal history. That criminal history disentitles you to any leniency in these proceedings. I do, however, take into account the fact that you have no previous convictions recorded against you for sexual offending. It also appears that your last offence prior to the one now before this court was in July 2009. That is of some significance because I note from the Pre-Sentence Report that you commenced an alcohol recovery program at the Canberra Recovery Service in September 2009 and completed the program in 2010 and thereafter, you told the author of the Report that you remained abstinent from the use of alcohol for a period of approximately 18 months, which appears to be corroborated by the criminal history which shows no offending over that period of time.
6. I note from the Pre-Sentence Report that you are 55 years of age and indeed you turn 56 tomorrow. You were born in England and you migrated to Australia when you were approximately 16 years of age. You never knew your biological father and you consider your stepfather as your real father. You reported a supportive upbringing and a positive family environment. However, the suicide death of your younger brother in 1987 was a trauma for the family and also for yourself which led to you increasing your consumption of alcohol to the stage where it became problematic.
7. Following the suicide of your brother in 1987 and the breakdown of your marriage in 1996, your consumption of alcohol became such that you would consume a carton of beer on a daily basis. I note that you have attempted rehabilitation from alcohol abuse in the past. You completed a 10 week residential rehabilitation program at Oolong House in 1998. You sought admission to Canberra Recovery Services in 2005, however, you were discharged after six months for breaking house rules.
8. In August 2006, you commenced the Canberra Recovery Services 10 month program and completed that program in May 2007. As I have already noted, in September 2009 you commenced the Canberra Recovery Service program and completed the program in July 2010. Since the commission of this offence, on 15 August 2013, you commenced the Canberra Recovery Service program, however, you decided to move on from that program on 14 October last year after completing 36 days of the level one program. You commenced the Arcadia House eight week program on 3 April this year. It is anticipated that you will complete the program on 14 May.
9. In assessing the objective seriousness of the offence before the court today, I take into account not only the nature of your actions and the circumstances in which they occurred, to which I have already referred, but I also take into account the fact that it is not alleged that there was any physical contact between yourself and the victim. You were approximately 20 metres from the victim at the time that this took place. Nevertheless, it was, as described by the victim, a very disturbing incident.
10. I note the maximum penalty for this offence is seven years' imprisonment. The author of the Pre-Sentence Report expresses the view that it is difficult to have any confidence in you being able to abstain from alcohol for any length of time and to avoid further conflict of the law upon completion of the current program and I presume that is based upon your past history. I have no doubt that if you make a commitment to abstaining from alcohol, you would be able to do so. Many others have done so in the past and indeed you have managed to do so for significant periods of time.
11. The author of the Report assessed you as being at medium risk of general reoffending but at medium to high risk of sexual re-offending. That assessed risk was primarily due to the nature of your offence and the author of the report noted that you would benefit from counselling.
12. Bearing in mind all of the circumstances, in my opinion, a term of imprisonment is an appropriate sentence with respect to this matter. However, I am obliged to consider whether something less than an immediate term of imprisonment to be served by way of full time imprisonment will be sufficient to satisfy the requirements of sentencing.
13. In my opinion, a sentence of imprisonment suspended with a Good Behaviour Order will be sufficient, bearing in mind the objective seriousness of the offence and the subjective circumstances to which I have referred.

I will formally record a conviction with respect to the charge. You will be sentenced to a term of eight months' imprisonment which will be fully suspended and there will be a Good Behaviour Order for a period of two years from today with conditions that you are to accept the supervision of ACT Adult Corrections for that period of two years or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of officers of ACT Corrective Services including, but not limited to, directions as to attendance at counselling or programs for alcohol abuse.

1. At the end of the day, what it comes down to, if I may say so, is this: I accept that alcohol abuse has played a significant part in the offences which are shown on your record and in the offence which you committed on this occasion. However, the fact that you abuse alcohol does not excuse your conduct. It may well explain it but it does not excuse it. The fact is, consumption of alcohol is lawful in this society. You can, if you want to, consume alcohol; many people do. Many people are alcoholics and do not commit offences so that I do not necessarily see that there is a necessary connection between the consumption of alcohol and the commission of offences such as this.
2. You have to ask yourself what is it about you that makes you commit crime when you have been consuming alcohol. It does not happen to everybody. You can drink yourself to death if you want to. At the end of the day, nobody particularly cares, but what you are not entitled to do is to commit crimes after you have been consuming alcohol.
3. I have imposed a suspended term of imprisonment. It requires you to comply with supervision by Corrective Services. That supervision will include directions, or may include directions, as to attendance at programs to deal with alcohol abuse and I would certainly recommend that Corrective Services direct you to complete the program that you are currently undertaking.
4. If you comply with all of the directions that are given to you by Corrective Services and you do not commit any further offences in the two year period of the Good Behaviour Order, then there is no reason why you should serve that sentence of imprisonment. However, if you do not comply with the directions that are given to you or, alternatively, you commit some further offence during the two year period of that Good Behaviour Order, then you should expect to serve that sentence of imprisonment.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.